from the the-loophole-is-a-superhighway dept

As was noted here earlier, the FBI took a bold step in towards joining the 21st century by finally implementing audio and video recording hardware introduced in the 20th century. Up until this point, the FBI, along with the DEA and ICE, did not record in-custody interrogations using anything more up-to-date than pen-and-paper. This rendered recollections of interrogations completely suspect, prone to pen-wielder bias and the insertion and removal of context as needed, presumably in order to help secure more convictions for the FBI's entrapment counterterrorism task force.

And, as was also noted, the DOJ's new instructions provided plenty of escape hatches for agents who wished their interrogations to remain as analog as possible. Unrecorded interrogations can still be performed in the event that desirable recording equipment (i.e., a cellphone) isn't available or if the equipment available isn't functioning (batteries missing/unplugged/inadvertently smashed to pieces…).

First, there's the "public safety" exception, which can be triggered when exigent circumstances make unrecorded and (un-Mirandized) interrogations a necessity. These would be questionings normally done in the first few moments of an arrest. But with everyone carrying around a recording device, that exception no longer makes much sense. You no longer have to take a suspect "downtown" in order to record a questioning. The inclusion of this loophole is likely borrowed from pre-existing language, but all it does is create reasons not to record.

[S]ince recording is no longer impracticable, why wouldn't a responsible law enforcement agency want to preserve an unambiguous record? Unlike a public safety exception to Miranda, a public safety exception to recording seems to serve no purpose other than that of affording a loophole that can be exploited for illicit purposes.

The other loophole is much, much larger. It's predicated on the same rationale that has allowed the Constitution to be selectively scrapped over the past dozen years.

The same point applies with even greater force to the exceptions for “national security” and “intelligence, sources, or methods.” If recording is feasible (and that is the only condition in which the recording policy applies), national security and counterterrorism officials can only gain by having an unambiguous record of precisely what a suspect was asked and precisely how he or she answered. Indeed, an official who deliberately chose not to make and preserve a clear record of a national security interrogation would display less dedication than incompetence.

As Schulhofer points out, this exception plays right into the mindset of the FBI, which has refashioned itself into the nation's largest counterterrorism force (putting law enforcement on the back burner). This also plays right into every law enforcement and intelligence agency's fetishization of "intelligence, sources or methods." This is what's conjured up to justify refusals of FOIA requests and to keep new surveillance methods out of the public eye for as long as possible. It's what's used to deny access to returned warrants on closed cases. But for the FBI, it's also a reason to never record anything, just in case. The FBI's intertwined relationship with the NSA -- combined with the last year of leaked documents -- will make any agent extremely wary about leaving behind undisputed records of intelligence-related interviews. But all this will do is make these agencies even more insular and untrustworthy than they already are.

No national security establishment can possibly operate effectively on the basis of unwritten knowledge and word of mouth. If our government has reacted to the Snowden affair by developing an aversion to writing anything down, we are in deep trouble.

"Deep trouble" is where we're headed, if we're not there already. The DOJ has given the FBI, DEA and ICE huge exceptions to the recording policy -- which, it must be noted, aren't actually commands but a "presumptions" -- ones that are particularly prone to exploitation. Over the past decade, we've seen the government exploit the fear of "the next 9/11" to expand power and contract civil liberties. Government agents may now have to act under the "presumption" that custodial interviews will be recorded, but the DOJ has given them a handy list of excuses to use when these recordings fail to happen.

There was no news release or news conference to announce the radical shift. But a DOJ memorandum obtained by The Arizona Republic spells out the changes that will begin July 11.

"This policy establishes a presumption that the Federal Bureau of Investigation (FBI), the Drug Enforcement Administration (DEA), the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) and the United States Marshals Service (USMS) will electronically record statements made by individuals in their custody," says the memo from James M. Cole, deputy attorney general, to all federal prosecutors and criminal chiefs.

"This policy also encourages agents and prosecutors to consider electronic recording in investigative or other circumstances where the presumption does not apply,'' such as in the questioning of witnesses.

As you can see, there's still a loophole for these agencies to exploit. They'll be "encouraged" to record non-custodial questioning, but there's no direct stipulation requiring it. On the plus side, this is a huge improvement over the previous method: handwritten notes taken by agents on a "302 form." Not only were the notes highly subjective, but they also tended to be destroyed as soon as possible. Others weren't even transcriptions of interviews, but were written after the fact using nothing more than an agent's power of recollection. This has obviously led to abuse, as well as to plain old carelessness.

The failure to maintain electronic records of interrogations also created gaps in FBI intelligence gathering, especially involving terrorism cases. Instead of maintaining an accurate and largely indisputable record, agents on the witness stand for decades have relied on their memories, interpretations and handwritten notes transcribed into a form known as the 302.

Critics have said that flawed system results in botched investigations, lost evidence, unprofessional conduct and false convictions. They noted that the historic DOJ practice was problematic in trials of suspects like terrorist Osama bin Laden, TV star Martha Stewart and Oklahoma City bombing defendant Terry Nichols, along with thousands of defendants with no public exposure.

Of course, those who prefer the old, unaccountable way are still raising objections, despite the fact that recording custodial interviews has been common practice in less-cutting edge local law enforcement agencies for decades.

Nancy Savage, executive director at the Society of Former Special Agents of the FBI, said there's probably no unilateral view from field agents. Although tape recorders sometimes intimidate suspects, she added, the change was probably inevitable because juries have come to expect audio and video evidence.

The FBI's other rationale for pen-and-paper-only has been that jurors might be persuaded to acquit someone if they were made aware of tactics used by agents to secure a confession.

In 2006, the New York Times uncovered another explanation for the DOJ policy, spelled out in an internal FBI memorandum. Basically, it argued that jurors might be offended, possibly to the point of acquitting defendants, if they observed the deceit and psychological trickery legally employed by agents to obtain information and confessions.

This would seem to be a problem the FBI needs to solve, rather than just expect the public to go along with its your-word-against-ours policy. The fact that the DOJ's several agencies need to be pushed into providing something more verifiable than an agent's slanted recollection of an interview is a sad statement on the mentality of those employed by these agencies. For them, it's been a long, easy ride, where any abuse under the old system could be mitigated by the agencies' "fighting the good fight" excuse. After all, they're chasing down drug dealers and terrorists. Who are we to question their methods?

Well, we're the public and we've been expecting accountability from our government agencies for a long time. And they've been in no hurry to provide it. By "boldly" pushing the ATF, DEA and FBI into the last half of the 20th century, Deputy AG James Cole is finally nudging his charges in the right direction. To be sure, recording devices can be tampered with, misplaced or simply never activated, but it's still a huge step forward from the agencies' long-held preference for pen, paper and subjective portrayals.